23 July 2012

The Interwebs went all stabby over the weekend on the back of news that ‘technology innovator’ Uniloc – famous for having successfully won a big settlement from Microsoft over patented copy protection technology – has sued Minecraft developer Mojang for infringement of a patent covering software licensing systems.

Step 5: internet bays mindlessly for the blood of Uniloc’s most well-known human face, Australian Ric Richardson, who was responsible for the invention covered by the patent before which Microsoft eventually laid down and paid up.

Just one small problem: Richardson has nothing to do with the patent in question, or the decision by Uniloc to sue Swedish company Mojang AB – or Square Enix Inc, Polarbit AB, Madfinger Games a.s., Laminar Research LLC, Gameloft S.A, Fullfat Productions Ltd, Electronic Arts Inc, Distinctive Developments Inc and Australian Fruit Ninja developer Halfbrick Studios Pty Ltd – all of which were named in separate suits filed by Uniloc USA Inc in the Eastern District of Texas on 20 July 2012.

Having been targeted in social media and via email, Richardson was compelled to remove his email address from his blog site, and to publish a response to what he described as ‘people making inflammatory remarks from the cheap seats’.

And you know what? He’s right. There are currently many opinions on the patent system, and what is wrong with it (and what is not). In some cases they are deeply and sincerely held views. But patent laws are passed by governments, and to the extent that many of us are fortunate to live in democratic nations, with the privilege of free speech, all that can be achieved by hurling abuse at individuals whose views differ from our own is a debasement of that privilege. Frankly, democracy and freedom of expression are wasted on some people.

‘I AM NOT A PATENT TROLL’

It is a well-publicised matter of record (not least in two episodes of ABC television’s Australian Story, ‘The Big Deal’ [2009] and ‘A Done Deal’ [2012]) that Uniloc was originally established as an operating company to develop and market copy protection software embodying Richardson’s product activation invention. It became primarily a patent licensing business after other opportunities – principally a relationship with IBM – fell through. And it only became a ‘patent assertion entity’ once it became apparent that Microsoft was using the patented technology, and had absolutely no intention of paying a royalty unless dragged kicking and screaming to the table.

The rest, as they say, is history – a history in which Richardson was continuously involved as inventor of the patent in question, over nine years of litigation against Microsoft.

However, when Patentology reached out to Richardson on Twitter today, he informed us that he has not been at Uniloc for five years, saying ‘I just defend my patents and get on with inventing.’

The disclaimer on his blogged response indicates that he remains a minority shareholder only, that he is not the inventor on the patent being asserted against Mojang and other mobile game developers, and that he has no influence over Uniloc’s actions.

And Richardson is adamant: ‘I am not a patent troll.’

We believe you Ric. But at the same time, a closer look at Uniloc helps us to understand why some more cynical souls might not.

WHY UNILOC LOOKS (MORE THAN) A LITTLE TROLLISH

We want to believe that non-practising entities are just looking after the interests of small inventors who cannot afford to assert their own patents. But scratch the surface just a little, and Uniloc starts to look just a little like the kind of company that would hide under a bridge just waiting to leap out an exact a toll from a weary traveller!

On its website, Uniloc plays the ‘American dream’ card:

Uniloc’s story mirrors an American theme seen over and over during the last few decades: a company that is discovering, growing and innovating technology that is changing the way people live.

Yet this is a company whose most well-known technology innovator is an Australian who works out of a van near the beach. Its headquarters are now in Luxembourg, although when it was fighting Microsoft they appeared to be in Singapore. And its US presence, Uniloc USA, Inc, is conveniently domiciled in the Eastern District of Texas, best known for its notoriously patent-friendly courts. On its Q&A page, Uniloc explains that it recently ‘took a multi-million dollar investment from IMF, a publically traded Australian company’, and that the ‘capital will be used for Uniloc’s widening requirements for its patent defense efforts.’

The patent Uniloc is asserting against Mojang and others, US Patent No. 6,857,067 [PDF, 230kB] is, according to USPTO records, assigned to a company called Global Technologies Holdings, Inc, located in New Jersey. A little internet research has turned up precisely nothing of any interest about this anonymous company. The assignment was only completed in January 2010, although the original provisional patent application was filed on 1 September 2000.

So while we would assume that there has been a more recent (as yet unrecorded) assignment from Global Technologies Holdings to Uniloc, it is clear that this is not a case of a company that is ‘discovering, growing and innovating technology’. Uniloc bought a patent which was filed over a decade ago, and has quickly proceeded to use it to sue some much-loved games developers.

In the current environment, an outpouring of vitriol was the certain consequence of this action. It is just a shame that too many people are too stupid – or simply thoughtless – to bother directing their bile in a remotely productive direction.

LIE DOWN WITH DOGS, GET UP WITH FLEAS

Unsurprisingly, given the timeline of events, Ric Richardson professes to have no knowledge of Global Technologies Holdings. Again, Ric, we believe you, though perhaps many would not.

This is not an article about the evils, merits, roles or definitions of patent ‘trolls’ – that piece has yet to be written here on Patentology. But we have to recognise that what Uniloc is doing bears all the classic hallmarks of what is commonly regarded as trollish behaviour. Many people are opposed to this behaviour, and argue that it is a sign that the patent system is ‘broken’. Such arguments are not without a level of persuasive force, and there is no question that – regardless of the actual rights and wrongs of any particular case – the more blatant and aggressive attacks by non-practising entities on innovative companies do serve to bring the patent system, and those who defend it, into disrepute.

And as for Ric Richardson – so long as he is named on Uniloc’s website as a member of its advisory board, who ‘continues to develop innovations for the company’, he will have to accept that if the stabbier elements in the cheap seats on the Interwebs see Uniloc as a flea-ridden mutt, then he is going to find himself scratching at a lot of irritating bites!

The right to exclude can be exploited in a variety of ways, including defending a market for one's own products. Also, every patent regime provides a right to exclude, but so far patent trolls are a unique feature of the US system. So I do not see that the exclusive rights, in themselves, promote trollish activity. Certainly they permit it, but there are other aspects of the US system that also play a role: presumption of validity; minimum damages; treble damages for wilful infringement…

As for copyright, it is not my area of specialisation. But I am not sure what you mean by 'courts mandated licencing of patents'. Courts in developed nations rarely issue compulsory licenses, even where they are available (although refusing to grant an injunction may produce a similar outcome). I am not sure how this would apply to copyrights, our what policy objectives would be served.